92 Decision Citation: BVA 92-17365
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-42 512 ) DATE
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THE ISSUE
Entitlement to an increased rating for simple-type
schizophrenic reaction with neurodermatitis, currently rated
as 70 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
W. A. Tonkins, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1959 to
September 1960.
This matter came before the Board on appeal from a rating
decision of April 1990 from the Pittsburgh, Pennsylvania,
Regional Office (hereinafter RO), which confirmed a
70 percent disability rating for schizophrenic reaction with
neurodermatitis, effective from May 1988. A notice of
disagreement was received in June 1990. A statement of the
case was issued in August 1990. A substantive appeal was
received in September 1990. A personal hearing was
conducted in January 1991. A supplemental statement of the
case was issued in June 1991. The case was received and
docketed at the Board in September 1991. The appellant has
been represented throughout his appeal by the Disabled
American Veterans. A written argument on appeal was
submitted by the veteran's representative in March 1992.
REMAND
The veteran is service connected for a psychiatric
disability, evaluated as 70 percent disabling. He has no
other service-connected compensable disability. The U.S.
Court of Veterans Appeals has held that the provisions of 38
C.F.R. 4.16(c) must be considered in such a factual
situation. Karnas v. Derwinski, 1 Vet. App. 308, 311 (1991).
A review of the Statement of the Case reveals that the
provision of this regulation has not been addressed by the
RO. This must be accomplished in order to afford the
veteran his due process rights. In addition, due to the
delay in deciding this case, current treatment records
should be obtained. Accordingly, the case is Remanded for
the following actions:
1. Department of Veterans Afairs (VA)
ouptatient treatment records subsequent
to February 1991 should be obtained from
the VA Medical Center Butler, Pa.
2. The RO should consider the issue of
whether the veteran is entitled to a 100
percent rating based on the provisions of
38 C.F.R. 4.16(c).
If the action in this case is not favorable, the veteran and
his representative should be issued a supplemental statement
of the case. This should include citation to 38 C.F.R.
4.16(c). Thereafter, the case should be returned to the
Board for completion of appellate review, after compliance
with due process requirements.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
D. W. DATLOW, M.D. I. S. SHERMAN
C. W. SYMANSKI
Under 38 U.S.C. § 7252 (1992), only a decision of the Board
of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of
a preliminary order and does not constitute a decision of
the Board on the merits of your appeal.